Opinion
SC: 162472 COA: 355410
11-05-2021
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anre Rashad MONTGOMERY, Defendant-Appellant.
Order
By order of April 30, 2021, the prosecuting attorney was directed to answer the application for leave to appeal the December 22, 2020 order of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Welch, J. (concurring).
A warrantless search of defendant's overnight accommodations led to the discovery of illicit drugs. The prosecution brought charges against defendant and a codefendant also present in the home. Both defendants filed suppression motions premised on the same underlying facts. The trial court granted the codefendant's motion and suppressed the evidence, concluding that the search was unconstitutional because it took place only after the officers invaded the curtilage of the home and peered through a window. But the trial court denied defendant's parallel motion on account of his status as a parolee because, as a condition of his parole, defendant had prospectively consented to searches upon demand of his person and property. Although the record is murky, it appears that the law enforcement officers who conducted the search did not justify their actions on the basis of defendant's parole status.
I question whether the trial court was correct to conclude that defendant's parole status created some sort of carte blanche to avoid application of the exclusionary remedy for such a clear-cut constitutional violation. At least for purposes of Michigan law, it remains unsettled what privacy interests a parolee retains and whether a parole search is lawful when it is not "directly and closely related" to the administration of the parole supervision system. People v. Woods , 211 Mich.App. 314, 318 n 2, 535 N.W.2d 259 (1995) ; see also id. (recognizing that "there is no clear rule in this area"). Although a majority of the United States Supreme Court has severely curtailed the Fourth Amendment protections afforded to parolees under the United States Constitution, Samson v. California , 547 U.S. 843, 852, 857, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (stating that parolees have "severely diminished expectations of privacy by virtue of their status alone" and that "the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee"), this Court is "not obligated to accept what we deem to be a major contraction of citizen protections under our constitution simply because the United States Supreme Court has chosen to do so," Sitz v. Dep't of State Police , 443 Mich. 744, 763, 506 N.W.2d 209 (1993). Samson may very well constitute this sort of major contraction of citizen protections that Michigan need not necessarily follow when interpreting and applying our own Constitution. See Samson , 547 U.S. at 857, 126 S.Ct. 2193 (Stevens, J., dissenting) ("What the Court sanctions today is an unprecedented curtailment of liberty."). Moreover, respecting the trial court's determination that the prospective consent to search "agreed to" by defendant as a condition of his parole was sufficient to avoid suppression, there are "recognized weaknesses in treating consent searches as voluntary searches in the context of the grant of parole." State v. Baldon , 829 N.W.2d 785, 797 (Iowa, 2013) (reviewing law journal articles and treatises). In fact, the Iowa Supreme Court—relying on that state's own constitution—has held that a parole agreement containing a search provision is not a voluntary grant of consent because, among other reasons, of the inequality in bargaining power between the parolee and the state. Id. at 802-803 ; see also People v. Huntley , 43 N.Y.2d 175, 182, 401 N.Y.S.2d 31, 371 N.E.2d 794 (1977) (recognizing that a standard parole agreement search authorization "is not to be taken as an unrestricted consent to any and all searches whatsoever or as a blanket waiver of all constitutional rights to be secure from unreasonable searches and seizures").
Because defendant has not directly advanced any argument premised on the requirements of our state Constitution, and because Samson appears to foreclose the arguments that defendant has raised, I concur in the Court's decision denying leave to appeal.
Cavanagh, J., joins the statement of Welch, J.